Alley Construction Co., Inc.

National Labor Relations Board - Board Decisions

May 29, 1974

210 N.L.R.B. 999 (N.L.R.B. 1974)

ALLEY CONSTRUCTION COMPANY 999
Alley Construction Company, Inc. and Highway
Construction Workers Local No. 78, affiliated with
the Christian Labor Association of the United
States of America , Petitioner, and International
Union of Operating Engineers , Local No. 49,
AFL-CIO, Petitioner. Cases 18-RC-9631 and
18-RC-9644
May 29, 1974
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election executed on July 23, 1973, elections
by secret ballot were conducted on August 16, 1973,
under the direction and supervision of the Regional
Director for Region 18 among the employees in the
appropriate unit. Upon the conclusion of the
elections, tallies of ballots were furnished the parties
in accordance with the Rules and Regulations of the
Board.
The tally of ballots in voting group 1 shows that
there were approximately 39 eligible voters and that
44 ballots were cast, of which 10 were for the
International Union of Operating Engineers, Local
No. 49, AFL-CIO, 26 were for Highway Construc-
tion Workers Local No. 78, affiliated with the
Christian Labor Association of the United States of
America, 1 was against the participating labor
organizations, and 7 were challenged.
The tally of ballots in voting group 2 shows that
there were approximately 54 eligible voters and that
54 ballots were cast, of which 32 were for Highway
Construction Workers Local No. 78, 10 were for
International Union of Operating Engineers, Local
No. 49, AFL-CIO, 5 were against the participating
labor organizations, and 7 were challenged.
In the Stipulation for Certification Upon Consent
Election the unit was divided into voting group 1 and
voting group 2, and provided that, inter alia, in the
event that a majority in voting group 1 does not vote
for the labor organization seeking to represent them
in a separate unit, such group will be combined in a
single unit with voting group 2, and the ballots in
that group will be pooled with those in voting group
2. Thereafter, International Union of Operating
Engineers, Local No. 49, AFL-CIO, herein called
Local 49, filed timely objections to conduct affecting
the results of the elections.
' Local 49 's exceptions, in our opinion, raise no material or substantial
issue of fact or law which would warrant reversal of the Regional Director's
findings and recommendations , or require the holding of a hearing
Contrary to our dissenting colleague, we are of the view that the
In accordance with the National Labor Relations
Board Rules and Regulations, the Regional Director
conducted an investigation and, on December 17,
1973, issued and duly served upon the parties his
Report on Objections, attached hereto, in which he
recommended that Local 49's objections be over-
ruled in their entirety. Thereafter, Local 49 filed
timely exceptions to the Regional Director's report.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioners are labor organizations claim-
ing to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
Voting Group 1: All operators, mechanics, oilers,
and greasers employed by the Employer, but
excluding laborers and truckdrivers and office
clerical employees, guards and supervisors as
defined in the Act.
Voting Group 2: All employees of the Employer;
but excluding employees in voting group 1, office
clerical employees, guards and supervisors as
defined in the Act.
5. The Board has considered the Regional Direc-
tor's report, and Local 49's exceptions thereto, and
hereby adopts the Regional Director's findings,
conclusions, and recommendations.'
Accordingly, as the tally shows that the Petitioner
Highway Construction Workers Local No. 78,
affiliated with the Christian Labor Association of the
United States of America, has obtained a majority of
the valid ballots cast, we shall certify it as the
exclusive bargaining representative of all employees
in the following unit which the Board has found
under such circumstances to be appropriate:
All employees of the Employer; but excluding
Employer's letter was merely pointing out that based upon a reading of both
contracts, the possibility of more employment existed under the CLA
contract because of its flexibility
210 NLRB No. 75
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office clerical employees, guards and supervisors
as defined in the Act.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Highway Construction
Workers Local No. 78, affiliated with the Christian
Labor Association of the United States of America
and that, pursuant to Section 9(a) of the National
Labor Relations Act, as amended, the said labor
organization is the exclusive representative of all the
employees in the unit found appropriate herein for
the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, or other
conditions of employment.
MEMBER JENKINS, dissenting:
Unlike my colleagues, I would direct a new election
on the basis of the evidence adduced by the Regional
Director in connection with his investigation of
Objection 9. This evidence establishes that during the
election campaign in which Local 492 and the CLA3
were competing for the right to represent the
employees of this Employer, a letter was sent to all
employees by the Employer which contained the
following statement:
I wish to go on record that I favor the Christian
Labor Association, and ask you to vote for it. I
believe the contract they have with other con-
struction companies in Minnesota is better all
around for both employees and employers than
the Local No. 49 contract. It has excellent fringe
benefits and provides the company the flexibility
we need to be sure that we can keep our
employees fully employed.
In my judgment, this statement goes far beyond
any legitimate comparison of the Unions' anticipated
contractual demands, as evidenced by their respec-
tive collective-bargaining agreements. The statement
is not only a flat endorsement by the Employer of
one of the two competing Unions, but this endorse-
ment is coupled with the dire predication that a vote
for the CLA offers the guaranty of continued job
security. Of course, such a statement by its very
nature leaves the implication that the employees
would be endangering their jobs by voting for Local
49, and it thereby destroys the true freedom of choice
we both expect and require in our election process.
Accordingly, I would find that the Employer's July
27 letter to employees constituted an impermissible
interference with the employees' freedom of choice in
the election and direct that a new election be
conducted.4
3 Highway Construction Workers Local No 78, affiliated with the
Christian Labor Association of the United States of America
4 The Regional Director 's findings and conclusions with respect to
certain other of the objections are of a somewhat dubious nature However,
in view of my conclusions with respect to Objection 9, any discussion of the
remaining objections would be superfluous.
REPORT ON OBJECTIONS AND
RECOMMENDATION THAT
CERTIFICATION OF REPRESENTATIVE
ISSUE
Pursuant to petitions filed on July 2, 1973, in Case
18-RC-9631, and on July 9, 1973, in Case
18-RC-9644, and the provisions of a Stipulation for
Certification Upon Consent Election approved by
the Acting Regional Director on July 23, 1973, an
election by secret ballot was conducted under the
direction and supervision of the Regional Director
on August 16, 1973, among certain employees of the
Employer.' The results of the election are set forth in
i The Stipulation for Certification Upon Consent Election describes the
appropriate unit as follows.
Voting Group I All operators , mechanics , oilers, and greasers employed
by the Employer , but excluding laborers and truck drivers and office
clerical employees, guards and supervisors as defined in the Act
Voting Group 2 All employees of the Employer; but excluding
employees in Voting Group One, office clerical employees , guards and
supervisors as defined in the Act.
If a majority of the employees in Voting Group One select the
Operating Engineers , the employees in that group shall be taken to
have indicated their desire to constitute a separate bargaining unit and
a certification of representative will be issued to such labor organiza-
tion for said unit.
If a majority in Voting Group One does not vote for the labor
organization seeking to represent them in a separate unit, such group
will be combined in a single unit with Voting Group Two , and the
ballots in that group will be pooled with those in Voting Group Two. If
the votes are pooled , they are to be tallied in the following manner. The
votes for the labor organization seeking a separate unit in Group One
shall be counted as valid votes , but neither for nor against the labor
organization seeking to represent the more comprehensive unit All
other votes are to be accorded their face value whether for representa-
tion by the labor organization seeking the comprehensive group or for
no union
International Union of Operating Engineers , Local No. 49, AFL-CIO.2
ALLEY CONSTRUCTION COMPANY 1001
the tallies of ballots served on the parties on August
17, 1973.2 The challenged ballots were not sufficient
in number to affect the results of the election.
On August 23, 1973, the International Union of
Operating Engineers, Local No. 49, AFL-CIO,
herein called Local 49, filed timely objections to
conduct affecting the results of the election, copies of
which were served upon the Employer and Highway
Construction Workers Local No. 78, affiliated with
the Christian Labor Association of the United States
of America, herein called the CLA.
Pursuant to Section 102.69 of the Rules and
Regulations of the National Labor Relations Board,
Series 8, as amended, the Regional Director has
investigated the objections and hereby reports and
recommends as follows:
Background
The Employer, Alley Construction Company, Inc.,
a Minnesota corporation with offices in Faribault,
Minnesota, is engaged in business as a general
contractor in highway and heavy construction. The
Employer is owned by Henry Berghuis who is also
president. Delwin Berghuis is vice president and
secretary of the Employer, and Daryl Berghuis is the
Employer's vice president, treasurer, and general
manager. Henry and Delwin Berghuis are brothers
who together as partners own Berghuis Construction
Co., which is located in Alexandria, Minnesota.
Daryl Berghuis, son of Henry, oversees the opera-
tions of the Employer, Alley Construction Company,
Inc.3
Between 1956 and April 1972 the employees of
Berghuis Construction Co. were represented by the
CLA. Thereafter, these employees were represented
by three unions jointly, one of which is Local 49.
Since at least 1969, Local 49 represented certain
employees of the Employer. In late 1972 the
Employer and Local 49 were unable to reach a new
collective-bargaining agreement. Thereafter, at irreg-
ular intervals, representatives of Local 49 met with
Berghuis and attempted to get Berghuis to sign the
current Local 49 contract. On about May 30, 1973,
Local 49 initiated an organizational drive which led
2 Voting Group I
Approximate number of eligible voters-39
Void ballots-None
Votes cast for International Union of Operating Engineeers, Local No
49, AFL-CIO-10
Votes cast for Highway Construction Workers Local No 78-26
Votes cast against participating labor organizations-I
Valid votes counted-37
Challenged ballots-7
Valid votes counted plus challenged ballots-44
to its filing of the instant petition in Case
18-RC-9644. In the meantime, the CLA began an
organizational drive among the employees of the
Employer and filed the petition herein in Case
18-RC-9631.
The Objections
Objections 1, 2, 4, and 8: In its first objection, Local
49 alleges that the Employer and the CLA made
repeated promises to employees individually and in
groups that if the CLA were selected by the
employees there would be more overtime work but if
Local 49 were selected there would be no overtime
work. In its eighth objection, Local 49 alleges that
the Employer promised employees benefits if they
voted for the CLA including, but not limited to,
promises of improved wages. In its fourth objection,
Local 49 alleges that the Employer deliberately tried
to confuse pro-Local 49 employees as to voting
locations. In its second objection, Local 49 alleges
that the Employer actively solicited and electio-
neered for and on behalf of the CLA and against
Local 49.
The Employer admits talking with employees prior
to the election but denies engaging in objectionable
conduct.
During the week of August 6 to August 11, 1973,
Berghuis talked to most of the employees at their
work locations individually or in groups about the
election.
One employee states that just before the election
Berghuis told him that if his machine broke down
with Local 49 the employee would be sent home but
with the CLA he would be assigned to another crew;
that therefore the employee could make more money
under the CLA; and that upon layoff CLA carries
the insurance through but with Local 49 you have to
continue to pay dues.
Another employee states that during the week
before the election he was in the shop and Berghuis
showed him the sample ballot. The employee thinks
Berghuis pointed to the Local 49 square and
remarked, whatever you do, don't vote for this. The
employee pointed to the no-union choice and
3
Voting Group 2
Approximate number of eligible voters-54
Void ballots-None
Votes cast for Highway Construction Workers Local No
78-32
'Valid"-10
Votes cast against participating labor organization-5
Valid votes counted-47
Challenged ballots-7
Valid votes counted plus challenged ballots-54
All references herein to Berghuis will be to Daryl Berghuis, unless
otherwise identified
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Berghuis said if the employees voted for that, it
would come up again next year. The employee said
he'd want to join a union because in case of layoff, a
union could get him work. Berghuis told the
employee not to worry; that the Employer had all
kinds of work. Berghuis also told him that in the long
run the employee would get more money under the
CLA, explaining that the way it is now if a machine
breaks down the operator could be assigned to
something else; that this is the way it would be done
under the CLA; but if the employee were represented
by Local 49, if the machine broke down the
employee would be sent home. Berghuis said under
Local 49, he would have to pay mechanics top scale
even during the winter and would close the shop
first; and .that during winter CLA scale is dropped.
Finally, the employee states that Berghuis said that
the CLA was better for all concerned.
A third employee reported that on or about August
10, 1973, Berghuis told him that it was easier to work
under the CLA contract than under Local 49's
contract; that under Local 49's contract if a machine
broke down the operator would be sent home; but
that under the CLA contract employees would work
on any open job. Berghuis also indicated to this
employee that the differences in insurance and dues
favored the CLA. Berghuis asked this employee to
explain what Berghuis had said to other employees.
Another employee reports that Berghuis talked to
him often; that Berghuis told him that he (Berghuis)
felt employees would be better off if they went CLA
and probably would get more hours based on the
present CLA and Local 49 contracts; that employees
would probably get more hours of work because
Local 49's contract requires overtime after 8 hours a
day whereas the CLA contract requires overtime
after 40 hours a week. In response to the employee's
question, Berghuis indicated that he thought the
CLA's wage scale was $1 an hour less than that of
Local 49.
Another employee states that a day or two before
the election, Berghuis told him that if machinery
broke down, under the Local 49 contract the
employee would have to be sent home, but under the
CLA contract the employee could be reaa;5igned
labor or other work; and that CLA contractors
usually had a little better equipment This employee
was told by Berghuis that Berghuis had been told by
an operator that under Local 49's health and welfare
provisions, quite a few operators run out of hours
before the end of the year and that this seldom
happened under the CLA contract. Also, Berghuis
remarked, in a joking manner, "If you are going to
vote 49, don't come." Then Berghuis added, "No, I
don't care how you vote; it's none of my business."
The employee voted in the election.
A sixth employee states that Berghuis talked to his
whole crew at least twice between June 26 and
August 1 , 1973; that Berghuis asked that the
employees support the CLA over Local 49; that
Berghuis said if the CLA got in, employees would be
able to continue working as laborers when their
machines broke down, but employees would be sent
home if Local 49 were selected ; that although he
could not guarantee it, there was a possibility of
working more overtime if the CLA got in because the
CLA pay scale was 80 cents per hour less than that of
Local 49.
A seventh employee states that Berghuis talked to
him at least three times before the election; that
Berghuis told him that under the Local 49 contract
employees were assigned one piece of equipment and
if that broke down, employees would be sent home
and would not be given a chance to work on other
equipment or on the labor crew; that if employees
voted for the CLA, under the CLA contract, they
could be assigned other machines or to a labor crew
or run the water truck and in this manner employees
would get their hours in, and that employees would
therefore make more money. Berghuis also told this
employee that under the CLA, employees pay dues
only when working while Local 49 requires dues be
paid year around; that Local 49's dues were $109 a
month; and that CLA dues were only 35 cents per
hour . Berghuis added that the benefits were better
under the CLA contract. Berghuis asked the employ-
ee what the employee would rather do , make more
money under the CLA or less money under Local 49.
The employee indicated the former.
Another employee states that Berghuis talked to
him two or three days before the election . Berghuis
initiated the conversation remarking , "I imagine you
are a 49er." The employee acknowledged he was.
Berghuis stated that the facts in the letter sent to
employees by Local 49 weren't true; that there were
more companies whose employees were represented
by the CLA than indicated in the letter; that he felt
the CLA was a better union for the Employer's
operation; that he thought the coverage under the
insurance was year around under the CLA and Local
49's plan only covered employees when working;
that the CLA insurance costs were less but had better
coverage; that there were more companies whose
employees were represented by the CLA than by
Local 49; that the CLA pay scale was a little bit less
than Local 49's, but that this would allow employees
under the CLA contract to work Saturdays as make-
up because overtime didn't have to be paid. Berghuis
stated that if your machine broke down under the
CLA, employees could be switched and work as
laborers and wouldn't have to be sent home; that
under the Local 49, employees wouldn't work as
ALLEY CONSTRUCTION COMPANY 1003
laborers because of the higher costs and that was
why employees would have to be sent home ; that he
would have to pay operators operators ' wages and
that was why employees never went on labor crews;
that under the CLA, employees could be put on
labor crews and draw laborers ' pay; and that there
was the possibility of getting more overtime under
the CLA because of the lower pay. Berghuis said if
the employee was going to vote CLA to make sure to
come and vote but if the employee wasn 't going to
vote CLA, he didn 't have to come and vote. The
employee stated that Berghuis wasn 't trying to be
funny with this remark , but that the employee did
vote in the election.
Another employee reports that a few days before
the election Berghuis indicated to him that he should
vote for the CLA; that if the election went the right
way employees could work two 10 -hour shifts a day
but if the election went the other way, if a machine
broke down, the operator would have to go home
and wait until it was fixed ; that the operator could
not do mechanic or laborer work.
Another employee states that a day or two before
the election Berghuis told him that the CLA
retirement and hospitalization plans were better than
Local 49's; that under Local 49, health , welfare, and
retirement were paid by the Employer to the Union;
that under the CLA this was paid directly to the
employees ; that Local 49 members told him that
retirement was about $36 a month ; that the contents
of a letter sent out by Local 49 was a pack of lies;
that the CLA had contracts with more employees
than indicated on the letter.
Another employee states that a couple of weeks
prior to the election and again dust before the
election Berghuis told him that employees could
work when machinery broke down under the CLA
but not under Local 49.
Three employees state that on separate occasions
before the election it was suggested to them or they
were asked by Berghuis to try to get the other
employees to vote for the CLA or to tell other
employees the benefits of the CLA. One of the
employees adds that Berghuis said if the employee
wanted to , he could explain to other employees about
the CLA, but not to tell the other employees how to
vote , but rather tell them to vote any way they
wanted to.
Berghuis states that he initiated each conversation
by explaining to employees how the election would
be conducted ; that he told employees that he favored
the CLA over Local 49, but that it was their decision
and he would try to negotiate with the Union the
employees selected ; that he had examined each
Union's contract and that there were differences in
the contracts which he hoped the men understood;
that the CLA did not follow craft lines ; that under
the CLA contract if machinery broke down the
operator could be used on labor crews or help repair
the machinery; that Local 49's contract follows craft
lines and should a machine be broken down for two
or three days the operator could not be used ; that his
past experience under union contracts was that when
he assigned operators to perform laborers ' work, the
Employer got complaints from the Laborers' Union.
Further, Berghuis explained that under the Local 49
contract overtime was required after 8 hours a day
while the CLA contract required overtime only after
40 hours a week ; that this meant that should weather
shut down a job for a day the Employer could make
up for lost time with no additional cost under the
CLA contract by working longer hours later that
week while under Local 49's contract the Employer
would be required to pay overtime if he wished to
make up for lost time and decided to work more than
8 hours a day. Berghius states that he told employees
that if Local 49 were voted in, he would try to
negotiate freedom from those restrictions.
Berghuis adds that he urged employees to make
sure they voted; that it was the employees ' decision
and he would try to negotiate with the Union the
employees selected ; that it was a secret ballot
election and he would not know how they voted and
that before employees voted they should hear all
sides. Berghuis states he also noted in these conversa-
tions that there was a possibility of negotiations
within each contract and that the contract would
have to be negotiated after the election , but that his
past experience with Local 49 did not give him the
indication that he could negotiate a contract with
Local 49 similar to the CLA contract. Further,
Berghuis indicated to employees that he had con-
tracts in his office that were available to them.
Berghuis states that he was questioned about health
and welfare and initiation fees and tried to answer
these questions based on his reading of the contracts.
Berghuis denies telling employees it cost $109 per
month to be a member of Local 49. He states he told
an employee who inquired of him that he heard from
another employee that Local 49's retirement benefits
were bad and that the employee had said he received
only about $40 per month.
Based on all the evidence received during the
investigation, I conclude that the preponderance of
the evidence supports the Employer' s contention that
his remarks relating to the advantages of the CLA
over Local 49 with respect to the breakdown of
equipment and the possibility of increased overtime
work and therefore increased earnings were linked to
the Employer' s adherence to the collective-bargain-
ing agreements of the respective Unions. As above
detailed, several employees confirm this. These
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remarks do not imply that the Employer would take
action in retaliation for its employees' selection of
one Union or another. Rather, in my view, they are
statements of opinion and prediction of events which
might occur, matters which were relevant to the
election issues and which the Employer had a right to
call to the employees' attention. I find therefore that
the Employer's campaigning and expressing of a
preference for the CLA were unaccompanied by
promises of benefit or threats of reprisal and were,
rather, predictions as to the precise effects the
Employer believes the choice of a particular Union
would have on the operations of the Employer and
were phrased on the basis of objective facts to
convey to employees the Employer's belief as to the
consequences beyond the Employer's control. I
conclude therefore that such remarks by the Employ-
er to employees do not exceed the bounds of
legitimate campaign propaganda and do not provide
a basis for setting aside the election. Plymouth Shoe
Company, 182 NLRB 1. Cf. Garden City Fan and
Blower Company, 196 NLRB No. 112; Bostitch
Division of Textron, Inc., 176 NLRB 377; Murphy
Body Works, Inc., 174 NLRB 824; T. M. Duche Nut
Co., Inc., 174 NLRB 457; Wilmington Heating
Service, Inc., 173 NLRB 68; The Mather Company,
Fluorotec Division, 172 NLRB 253; Trent Tube
Company, Subsidiary of Crucible Steel Company of
America, 147 NLRB 538.
Similarly, I find that the other remarks by the
Employer pointing out the advantages of the CLA
over Local 49 and the Employer's suggestions to
employees that they urge other employees to support
and vote for the CLA, unaccompanied by promises
of benefit, threats of reprisal or other coercive
conduct, constitute only the Employer's expression
of a preference for one Union over the other which,
as above noted, does not provide a basis to set aside
the election. Plymouth Shoe Company, supra. Cf. Gary
Aircraft Corporation, 190 NLRB 306.
Finally, the remarks by Berghuis to two employees
to the effect that if they were going to vote for Local
49 they shouldn't vote does not provide a basis to set
aside the election in view of the facts that one
employee states that Berghuis was joking when he
made the remark and the other employee did in fact
vote in the election and such a remark, even if
serious, to a single employee is too isolated and
innocuous to justify setting aside the election. Cf.
Garden City Fan and Blower Company, supra.
Accordingly, the Regional Director concludes that
Local 49's Objections 1, 2, 4, and 8 are without merit
and recommends that they be overruled.
Objections 3 and 7: In its third objection, Local 49
alleges that the Employer and the CLA made
deliberately false and unfounded statements that if
Local 49 were selected there would be a strike. In its
seventh objection, Local 49 alleges that the CLA
made threats and misrepresentations to employees
that if they did not vote for the CLA the employees
would be discharged or disciplined.
Employee LaVerne Wieberdink talked to several
employees about the election. One employee states
that Wieberdink talked to him several times prior to
the election and specifically on July 29 and 31, 1973;
that Wieberdink told him that if he were going to
stay working for the Employer he had better vote for
the CLA; that this came from the bosses; and that if
the bosses found out he voted for Local 49 he would
be done.
Another employee states that Wieberdink told him
that he would make more money with the CLA; that
if employees' equipment broke down under Local 49,
the employees would be sent home while with the
CLA you would get assigned to another crew.
A third employee states that Wieberdink told him
that if he did not vote CLA he could go down the
road.
A fourth employee reports that Wieberdink told
him that it looked like the CLA would get in and if
this employee wanted to keep his job he better vote
for the CLA.
Another employee reports that he overheard
Wieberdink tell other employees that if Local 49
prevailed in the election, there would be a strike and
employees would not have a job.
Local 49 alleges that Wieberdink was an agent of
the CLA. The investigation revealed that for several
years prior to 1971 employees of Berghuis Construc-
tion Co. were represented by the CLA; and that in
1972 the Board certified three unions, one of which
was Local 49, as a j xnt representative of the
employees of Berghuis Construction Co. During this
time Wieberdink was employed by Berghuis Con-
struction Co. Between 1968 and 1972 when the CLA
represented Berghuis' employees, Wieberdink was
the CLA shop steward. Following Local 49's certifi-
cation, Wieberdink maintained his membership in
the CLA only until February 1972. There is no
evidence that the CLA recruited Wieberdink to
campaign on their behalf or that Wieberdink, during
the preelection campaign period, was acting in any
capacity other than that of an employee.
One employee states that two or three days before
the election during the employee's conversation with
Berghuis about the advantages of the CLA , Berghuis
stated that next spring Local 49 would be off work;
that it was then contract time and Local 49 usually
struck. The employee denied that this was in
response to any question he had asked.
Berghuis states that when he was talking to
employees some asked questions about the possibili-
ALLEY CONSTRUCTION COMPANY
ty of a strike; that he replied that he could not
answer that question; that to the best of his
knowledge Local 49 had one strike in 1970 and one
in 1972; and that he did not know if a contract
between Local 49 and the Employer would run out
next spring. Berghuis states he added that he did not
recall the CLA ever striking in Minnesota.
The investigation did not establish that the Em-
ployer made deliberately false or unfounded state-
ments that if Local 49 were selected there would be a
strike. Berghuis did note to a few employees Local
49's strike history. However, in my view, these
remarks did not exceed the bounds of legitimate
campaign propaganda and do not provide a basis for
setting aside the election. Cf. Bostitch Division of
Textron, Inc., supra; Coors Porcelain Company, 158
NLRB 1108.
Further, I find that the remarks attributed to
Wieberdink did not interfere with the free and
reasoned choice of the employees and do not provide
a basis for setting aside the election. In support of
this finding, I note the absence of evidence that
Wieberdink was an agent of the CLA or that the
CLA was otherwise responsible for the remarks and I
conclude that the remarks were not of such a nature
as to create a general atmosphere of fear and reprisal
among the voters. Corriveau & Routhier Cement
Block, Inc., 171 NLRB 787; O. K. Van & Storage
Company, 122 NLRB 795.
Accordingly, the Regional Director concludes that
Local 49's Objections 3 and 7 are without merit, and
recommends that they be overruled.
Objections 5 and 6: In its fifth objection Local 49
alleges that the Employer laid off employees because
of their support of Local 49. In its sixth objection
Local 49 alleges that the layoffs were timed to
improperly influence the outcome of the election.
The Employer denies that layoffs were discriminato-
rily motivated or were timed to influence the
election.
On August 24, 1973, Local 49 filed an unfair labor
practice charge in Case 18-CA-3962 alleging, in part,
that the Employer violated Section 8(a)(3) of the Act
by laying off employees because of their support of
Local 49 and in order to prevent employees from
expressing that preference in the pending election.
The Regional Director having caused an investigation
to be made of such allegations in the unfair labor
practice charge and having concluded that the
evidence was insufficient to establish that the layoffs
,were unlawfully motivated or that employees were
selected for layoff based on unlawful motivation or
that the layoffs were timed in order to influence the
outcome of the election, on December 14, 1973,
advised the Petitioner in writing that the Regional
1005
Director was refusing to-issue complaint with respect
to such allegations.
The Board has held that an objection based on
alleged discriminatory discharges must be supported
by a meritorious unfair labor practice charge. Texas
Meat Packers, Inc., 130 NLRB 279.
Accordingly, the Regional Director concludes that
Local 49's Objections 5 and 6 are without merit and
recommends that they be overruled.
Objection 9: In its ninth objection, Local 49 alleges
that the Employer distributed a letter to all employ-
ees containing promises of economic benefit if
employees selected the CLA, approving and implicit-
ly promising to agree to the CLA contract while
disapproving and implicitly promising not to agree to
the Local 49 contract. The Employer denies the letter
constitutes objectionable conduct.
On about July 27, 1973, the Employer sent a letter
to its employees. The first four paragraphs explained
the mechanics of the election. The fifth paragraph
reads as follows:
I wish to go on record that I favor the Christian
Labor Association, and ask you to vote for it. I
believe the contract they have with other con-
struction companies in Minnesota is better all
around for both employees and employers than
the Local #49 contract. It has excellent fringe
bene;" is and provides the company the flexibility
we need to be sure that we can keep our
employees fully employed.
The Regional Director has reviewed the alleged
objectionable paragraph set forth above and con-
cludes that the remarks contained therein, consid-
ered in isolation and in conjunction with the facts
disclosed in the investigation of Objections 1, 2, 4,
and 8 , do not constitute promises of benefit or
otherwise exceed the bounds of legitimate campaign
propaganda . Cf. C. E. Glass, Division of Combustion
Engineering, Inc., 189 NLRB 496.
Accordingly, the Regional Director concludes that
Local 49's Objection 9 is without merit and recom-
mends that it be overruled.
Objection 10: In its tenth objection Local 49 alleges
that the Employer improperly interrogated employ-
ees concerning whether they favored the CLA or
Local 49.
One employee states that he and a second
employee were in Berghuis ' office and Berghuis
asked what it looked like ; "Which union did the
majority favor?" The other employee denies that he
was present with the first employee when Berghuis
asked this question but states that on another
occasion he was in the office with a third employee
when Berghuis asked him how he thought the
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election was going to go. This employee adds that
Berghuis told him he should vote the way he wanted
but to be sure to vote.
Berghuis states that after the petitions were filed
but before the election, the first two employees came
into his office; that they brought up the subject of the
election and indicated that they wanted the CLA;
that he told them that if they wanted it they ought to
work for it; that the employees asked if Berghuis had
a feeling on how the election would turn out and
Berghuis replied that if anybody knew, it should be
the employees. Berghuis denies asking the employees
how they felt the election would turn out.
Berghuis states that shortly before the election, the
second group of two employees came into his office
and told him they were interested in how the election
would turn out. Berghuis states he told them they
should go out and work on it; that they had a right to
tell other employees how they felt, but that was up to
them. Berghuis states that the employees wanted to
know if Berghuis was going to be angry or upset if
they tried to fight for one Union; and that Berghuis
told them as far as he was concerned they could go
4 Under the provisions of Section 102 69 of the Board's Rules and
Regulations , exceptions to this report may be filed with the Board in
'jut and work for any Union or neither; that
Berghuis' concern was that everybody votes and
everybody makes up his own mind.
Even assuming the conversations occurred as
related by the employees , I conclude that they do not
provide a basis for setting aside the election. I note
that the remarks were made in an atmosphere free of
coercive conduct , that Berghuis told one of the
employees that he should vote the way he wanted,
and that in any event such remarks were isolated in
nature . Cf. Garden City Fan and Blower Company,
supra; Dyersburg Cotton Products, Inc., 168 NLRB
1116.
Accordingly , the Regional Director concludes that
Local 49' s Objection 10 is without merit and
recommends that it be overruled.
Conclusion and Recommendation
Having recommended that Local 49's objections be
overruled in their entirety, the Regional Director
further recommends that a Certification of Repre-
sentative issue.4
Washington, D C Exceptions must be received by the Board in Washington
by January 2, 1974.